On September 27, 2024, Governor Newsom signed Senate Bill (SB) 1137, which clarifies that the Unruh Civil Rights Act, the provisions of the Education Code prohibiting discrimination in public education, and the California Fair Employment and Housing Act (FEHA) prohibit discrimination on the basis not just of individual protected traits, but also on the basis of the intersectionality (e.g., combination) of two or more protected traits.

Specifically relevant to employers, the law amends FEHA to clarify that the protected characteristics enumerated in the statute include a combination of those characteristics.

The California Legislature described the concept of intersectionality as follows:

Intersectionality is an analytical framework that sets forth that different forms of inequality operate together, exacerbate each other, and can result in amplified forms of prejudice and harm. The framework and term “intersectionality,” coined and popularized by legal scholar Professor Kimberlé Williams Crenshaw, captures the unique, interlocking forms of discrimination and harassment experienced by individuals in the workplace and throughout society . . .

Through SB 1137, California’s Legislature affirms the decision of Lam v. University of Hawai’i (9th Cir. 1994) 40 F.3d 1551, where the Ninth Circuit found that when an individual claims multiple bases for discrimination or harassment, it may be necessary to establish whether the discrimination or harassment occurred on the basis of a combination of these factors, not just one protected characteristic alone.  

This amendment will take effect January 1, 2025.

Federal law already affords similar protection pertaining to discrimination and harassment in the Equal Employment Opportunity Commission’s interpretive guidance of Title VII of the Civil Rights Act of 1964. 

On September 26, 2024, Governor Newsom signed Assembly Bill (AB) 1815, which amends the definition of “race” in the anti-discrimination provisions of the California Government Code, and Education Code, as well as the definitions of “protective hairstyles.”  Under the bill, the same definitions apply to the Unruh Civil Rights Act which covers discrimination by businesses.

California was the first state, in 2019, to clarify that the definition of race discrimination included hairstyles under the CROWN Act. AB 1815 makes amendments to the CROWN Act including the definition of “race” and “protective hairstyles.”

Under the amendments, race is “inclusive of traits associated with race, including but not limited to hair texture and protective hairstyles.” “Protective hairstyles” “include but are not limited to such hairstyles as braids, locs, and twists.”

Before AB 1815, some code sections defined “race” as inclusive of traits historically associated with race.  As amended, the word “historically” was removed because it was vague and confusing.  The bill applies retroactively since it is a declaration of existing law.

The changes discussed here may seem minor.  However, employers should take heed because the definitions may impact existing policies dealing with acceptable dress and appearance in the workplace.

If you have questions about AB1815 or related issues, contact a Jackson Lewis attorney to discuss.

Governor Newsom has signed Senate Bill (SB) 1340, which mandates the Civil Rights Department to collaborate with local agencies to prevent and eliminate unlawful practices. Local agencies may now play a more active role in handling discrimination complaints, potentially providing quicker and more localized responses.

SB 1340 now provides that any political subdivision of the state may enact and enforce anti-discrimination laws that are at least as protective as state law. Importantly for employers, local enforcement may occur only after the Civil Rights Department issues a right-to-sue notice; however, the statute of limitations provided in the right-to-sue notice is extended during any local enforcement, without prohibiting the potential plaintiff from filing during local enforcement.

The changes take effect January 1, 2025.

If you have questions about SB 1340 and related issues, contact a Jackson Lewis attorney to discuss.

As of September 24, 2024, Governor Newsom has signed Senate Bill (SB) 1105, which expands existing paid sick leave provisions to allow agricultural employees to use paid sick leave for additional reasons.

These changes take effect on January 1, 2025.

SB 1105 supplements the Healthy Workplaces, Healthy Families Act of 2014 to require that employers provide paid sick days to agricultural employees who (i) work outside and (ii) request sick leave to avoid smoke, heat, or flooding conditions created by a local or state emergency, including sick days necessary for preventive care due to their work or such conditions.

SB 1105 defines “agricultural employee” as a person employed in any of the following:

  • An agricultural occupation, as defined in Wage Order No. 14 of the Industrial Welfare Commission.
  • An industry that prepares agricultural products for the market on the farm, as defined in Wage Order No. 13 of the Industrial Welfare Commission.
  • An industry that handles products after harvest, as defined in Wage Order No. 8 of the Industrial Welfare Commission.

Current requirements of the Healthy Workplaces, Healthy Families Act remain in effect with the amendment outlined above. Existing law entitles an employee who works in California for the same employer for 30 or more days within one year from the commencement of employment to paid sick days for specified purposes upon the oral or written request of an employee. These specified purposes include the diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member. Employers may not deny an employee the right to use accrued sick days or discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using or attempting to use accrued sick days. Lastly, existing law requires the Labor Commissioner to enforce the Act, including investigating an alleged violation, and authorizes the Labor Commissioner to order any appropriate relief, as specified, to an employee or other person whose rights under the Act were violated.

If you have questions about SB 1105, the Healthy Workplaces, Healthy Families Act, or related issues, please contact a Jackson Lewis attorney to discuss.

On September 22, 2024, California Governor Gavin Newsom signed Assembly Bill (AB) 3234 into law which imposes more transparency requirements for employers that audit their child labor practices.  The bill will take effect on January 1, 2025.

Under AB 3234, any employer that has voluntarily subjected its business to a “social compliance audit” to determine in whole or in part if child labor is involved in the employer’s operations or practices, must post a link on its website to a report detailing the findings of the audit.  AB 3234 defines “social compliance audit” as a voluntary, nongovernmental inspection or assessment of an employer’s operations and practices to verify that it complies with state and federal labor laws, including health and safety regulations regarding child labor.

AB 3234 provides that the following information must be included within the compliance report:

  • The year, month, day, and time the audit was conducted, and whether the audit was conducted during a day shift or night shift;
  • Whether the employer engages in or supports the use of child labor;
  • A copy of the employer’s written policies and procedures regarding child employees;
  • Whether the employer exposes children to any workplace situations that are hazardous or unsafe to their physical and mental health and development;
  • Whether children work within or outside regular school hours, or during night hours, for the employer; and
  • A statement that the auditing company is not a government agency and is not authorized to verify compliance with state and federal labor laws or other health and safety regulations.

Given this upcoming change in the law, legal and compliance teams should assess whether their companies are subject to the AB 3234 disclosure requirements.  If you have questions about AB3234 or related issues, contact a Jackson Lewis attorney to discuss.

As kids head back to school, California employees with children may need time off for various reasons from school-related activities to kids who are sick. Here are reminders of the California leave entitlements for parents and caregivers.

School Activity Leave

Under California Labor Code Section 230.8, employers with 25 or more employees working at the same location must provide parents, guardians, or grandparents with custody of a child in grades kindergarten through 12 or attending a licensed daycare facility with up to 40 hours of unpaid leave per year.

This leave allows employees to participate in school activities, including field trips, school meetings, and childcare provider conferences. However, the leave is capped at eight hours per month.

Employers may require employees to use any accrued vacation time or other paid time off before taking unpaid leave for school activities. Additionally, employees must provide reasonable advance notice of the need for such leave.

Suspension or Expulsion Meeting

California Labor Code Section 230.7 prohibits all employers from discharging or discriminating against a parent or guardian employee for taking time off to appear at their student’s school for purposes of suspension or expulsion meetings pursuant to California Education Code section 48900.1.

Paid Sick Leave

When kids bring home the latest virus circulating at school, parents or guardians have the right to use their accrued Paid Sick Leave to care for a child. Paid sick leave under California law allows employees to take time off for the diagnosis, care, or treatment of an existing health condition, as well as preventive care, for both the employee and the employee’s family. At the start of 2024, the amount of mandated paid sick leave increased to five days or 40 hours. In addition, employers should check whether any local sick leave ordinances also apply.

If you have questions about California leave law or related issues contact a Jackson Lewis attorney to discuss.

In Stone v. Alameda Health System, the California Supreme Court considered whether all public entities that are not specifically governmental in nature are exempt from the obligations in the Labor Code such as meal and rest breaks and overtime, and whether penalties available under the Private Attorneys General Act (PAGA) apply to public entities. The Court held that public entities were exempt from obligations under the Labor Code unless specifically stated and that PAGA penalties do not apply to public employers.

Underlying Case

Highland Hospital is a facility operated by Alameda Health System (AHS), a public agency established to manage, administer, and control the medical center by the Board of Supervisors of Alameda County.

The plaintiffs in the underlying case were employees of Highland Hospital who brought a complaint alleging violations of the Labor Code and wage orders, specifically related to meal and rest breaks and derivative claims.

AHS demurred on the ground that it was a public entity and not subject to suit for the Labor Code violations asserted. The argument was predicated on a case that had held that provisions of the Labor Code apply only to private sector employees unless they are specifically made applicable to public employees.

California Supreme Court’s Opinion

The California Supreme Court considered several angles in reaching its conclusions regarding exemptions for public employers. The Court considered the legislative intent and determined the Legislature intended to exclude public employers from meal and rest break obligations and related statutes based on legislative history and actions. Further, the statutory language of the Labor Code and wage orders define “employer’ in such a way that excludes public entities.

The Court also reviewed prior case law in the area and found that appellate decisions have uniformly concluded, unless the laws in question expressly state otherwise, the Labor Code’s wage and hour requirements do not apply to public employers.

As to the PAGA application, the Court undertook a similar analysis finding that the statutory language of PAGA which references definitions in the Labor Code, does not include public employers. Moreover, the legislative history of PAGA indicated that it was not intended to apply to public employers.

The Court also noted public policy concerns in applying PAGA civil penalties to public entities, noting the argument that the Government Code seeks to protect public entities from penalties that are intended to punish and deter, similar to punitive damages. Moreover, diverting funds to pay penalties would interfere with public entities’ ability to fulfill their missions.

Based on the Court’s decision, Court of Appeal was directed to remand the matter to the trial court with directions to reinstate its ruling on the demurrer and conduct any further proceedings as appropriate.

If you have questions about the application of the ruling in Stone v. Alameda Health Systems or related issues, contact a Jackson Lewis attorney to discuss.

As Golden State employers know, a new workplace violence prevention law for non-healthcare employers went into effect on July 1, 2024.  Cal/OSHA, the agency charged with overseeing workplace safety and health, has been directed to develop regulations to implement this new law.

Many employers are hoping that the new regulations will shed some light on the ambiguities that plague the new law.  After all, employers and Cal/OSHA were instructed to comply with this new law before Cal/OSHA had an opportunity to draft or implement its regulations.  At this early stage in the drafting process, the utility of the final regulations remains to be seen.  However, employers have an opportunity to have their voices heard while these regulations are being put into place.

The proposed regulations are available for review and public comment.  The draft changes revise what was outlined in the law passed last year under the Labor Code.  Interested stakeholders may submit written comments to the Deputy Chief of Health, Eric Berg at eberg@dir.ca.gov until September 3, 2024.  

Here are the highlights of the proposed regulations:

  • Cal/OSHA proposes to further limit the “small, private worksite” exception.
    • The law does not apply to small, private worksites in compliance with Cal/OSHA’s injury and illness prevention requirements.  
    • The original statute defined these small worksites as “[p]laces of employment where there are less than 10 employees working at the place at any given time and that are not accessible to the public . . . .” 
    • The draft regulation proposes to further narrow the definition so that it would only apply to places that have 10 employees working at the place – removing the “at any given time” language.
  • Cal/OSHA provides examples of engineering controls and work practice controls to reduce workplace violence hazards.
    • Engineering controls (aspects of the built space, or a device that removes or creates a barrier to a workplace violence hazard) may include, but are not limited to:
      • electronic or mechanical access controls to employee-occupied areas;
      • weapon detectors (installed or handheld);
      • enclosed workstations with shatter-resistant glass;
      • deep service counters;
      • spaces configured to optimize employee access to exits,
      • escape routes, and alarms;
      • separate rooms or areas for high-risk persons;
      • locks on doors;
      • furniture affixed to the floor;
      • opaque glass (protects privacy, but allows employees to see where potential risks are);
      • improving lighting in dark areas, sight-aids, improving visibility, and removing sight barriers;
      • video monitoring and recording; and
      • personal and workplace alarms.
    • Work practice controls (procedures, rules, and staffing used to reduce workplace violence hazards) may include, but are not limited to:
      • appropriate staffing levels;
      • provision of dedicated security personnel;
      • an effective means to alert employees of the presence, location, and nature of a security threat;
      • control of visitor entry;
      • methods and procedures to prevent unauthorized firearms and weapons in the workplace;
      • employee training on workplace violence prevention methods;
      • and employee training on procedures to follow in the event of a workplace violence incident or emergency.
  • Cal/OSHA proposes changes to the employer’s system for communicating regarding workplace violence matters.
    • Employers already are required to communicate with employees regarding workplace violence concerns, including allowing employees to report concerns, investigate employee concerns, and notify employees of the results of the investigation and corrective action to be taken.  The proposed regulations would:
      • Give employers these same obligations for workplace violence concerns reported by authorized employee representatives.
      • Require employers to keep a record of all reports of workplace violence concerns, including anonymous reports, and keep a record of all investigations into these concerns.
      • Require employers to keep the identity of reporting employees confidential unless the employee expressly allows their identity to be shared.
  • Cal/OSHA provides guidance on the types of workplace violence hazards to be considered in an employer’s hazard inspections.
    • As proposed by Cal/OSHA, an employer’s inspection for workplace violence hazards must be documented and must include at least the following workplace violence risk factors:
      • Employees working alone or in locations isolated from other employees.
      • Areas with poor illumination or blocked visibility (e.g. blind spots) of surrounding areas.
      • Entries to places of employment where unauthorized access can occur.
      • Work locations, areas, or operations that lack effective escape routes.
      • Presence of money or valuable goods.
      • Frequent or regular contact with the public.
      • Working late at night or early morning.
      • Selling, distributing, or providing alcohol, marijuana, or pharmaceutical drugs.
  • Cal/OSHA seeks to enhance the methods for taking corrective action for workplace violence hazards.
    • As part of requiring employers to timely correct workplace violence hazards, Cal/OSHA also proposes to require the following:
      • Engineering and work practice controls (as appropriate for the workplace) must be implemented to eliminate or minimize employee exposure to workplace violence hazards that have been identified.
      • With the exception of dedicated security personnel, employees may not be required or encouraged to confront persons suspected of committing a criminal act or engaging in workplace violence.
      • Employees must be allowed to remove themselves from an unsafe condition without fear of reprisal.
      • Employers must keep records of the corrective measures both considered and implemented to address workplace violence hazards.
  • Cal/OSHA spells out the requirements for responding to, and investigating, workplace violence incidents.
    • The statute did not specify how an employer must respond to a workplace violence incident or investigate it.  Cal/OSHA proposes to require employers to do at least the following:
      • Provide immediate medical care or first aid to employees who have been injured in the incident.
      • Identify all employees involved in the incident (but do not include names and other personally identifiable information in the written investigation report).
      • For employers with more than 25 employees, make available individual trauma counseling to employees affected by the incident.
      • Conduct a post-incident debriefing as soon as possible after the incident with employees, supervisors, and security involved in the incident.
      • Identify and evaluate any workplace violence hazards that may have contributed to the incident.
      • Identify and evaluate whether appropriate corrective measures developed under the employer’s plan were effectively implemented and if any new or additional corrective measures are recommended.
      • Solicit from employees involved in the incident their opinions regarding the cause of the incident, and whether any measure would have prevented the incident.
      • For each workplace violence incident, prepare a written investigation report, which shall include all of the following:
        • Description of how the employer complied with the post-incident response and investigation requirements identified above.
        • All information the employer received or produced regarding the hazards that contributed to the incident, corrective measures, and employees’ thoughts on the cause of the incident.
        • Results and recommendations of the incident investigation.
        • Note: The current version of the proposed regulations would not allow employee names or personally identifiable information in the written investigation report.  It is unclear if this is a typographical error, and if the agency intended to refer to the violent incident log.  The agency’s original model workplace violence prevention plan document contained this same language and was later amended to refer to the violent incident log.

An advisory committee meeting will be held later this year to further discuss the proposed regulations.

Jackson Lewis will continue to track Cal/OSHA developments. If you have questions about Workplace Violence Prevention compliance or related issues, contact a Jackson Lewis attorney to discuss.

California will see another increase to its minimum wage on January 1, 2025. The minimum wage in California will increase from $16.00 per hour to $16.50 per hour on January 1, 2025. This increase applies to all employers, regardless of size. The adjustment is based on the Consumer Price Index (CPI), which saw a 3.18% increase over the past year.

Additionally, the minimum salary for full-time exempt employees will increase from $66,560 per year to $68,640 per year on January 1, 2025.

However, employers should be aware that numerous cities and industries across the state have separate minimum wages, which are typically higher than the state minimum wage. 

In addition, California voters will decide on Proposition 32, a ballot initiative to raise the state’s minimum wage, in November. If passed, the minimum wage would stair step increase to $18 per hour for all employers by 2026. The initiative also includes provisions for annual adjustments tied to the consumer price index to account for inflation. 

Jackson Lewis continues to track legal changes that affect California employers. If you have questions about minimum wage or salary compliance or related issues, contact a Jackson Lewis attorney to discuss.

The hospitality industry is important to California’s economy and provides significant employment across the state. Due to the large workforce within the hospitality sector, many cities across the state have implemented employment regulations for the industry. Here are some of the ordinances employers need to know.

Hotel Minimum Wage Ordinances

Several cities have separate minimum wage requirements for hotel workers.

CityMinimum Wage for Hotel WorkersEffective
Long Beach$23.00July 1, 2024
Los Angeles$20.32July 1, 2024
Oakland$17.94 with health benefits $23.91 without health benefitsJanuary 1, 2024
Santa Monica$20.32July 1, 2024
West Hollywood$19.61July 1, 2024

Hotel Worker Protection Ordinances

In addition to enforcing minimum wage ordinances, several cities also have protection ordinances pertaining to the safety of hotel workers. These ordinances have similar requirements, such as providing employees with a personal safety device (commonly referred to as a panic button), implementing policies about reporting threatening or violent incidents, and providing training to employees on how to handle violent incidents.

The following cities have hotel worker protection ordinances:

  • Glendale
  • Irvine
  • Long Beach
  • Los Angeles
  • Oakland
  • Sacramento
  • Santa Monica
  • West Hollywood

Right of Recall Ordinances

A handful of cities also have the right of recall ordinances, which require covered employers to offer qualified employees who were laid off available positions as they open up based on seniority and related factors. The cities of Emeryville, Long Beach, and Santa Monica all have ordinances that specifically apply to the hospitality industry.

If you have questions about local ordinances that apply to hospitality employers or related issues, contact a Jackson Lewis attorney to discuss.